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Cobos v. Dona Ana County Housing Authority12/3/1998
{1} In this case we must decide whether a breach of public employees' duties of operation and maintenance of a privately-owned building used to provide shelter under a federally-funded low-income housing program falls within the "building waiver" of the New Mexico Tort Claims Act. See NMSA 1978, § 41-4-6 (1977) (waiver of governmental immunity for "operation or maintenance . . . of any building" (emphasis added)). The trial court and the Court of Appeals held that the public entity must have a legal ownership interest in the real property for the waiver to apply. We hold that the Legislature intended the building waiver to apply to any building in which public employees owe a duty to operate or maintain exercising ordinary care. We conclude that public employees had such duties in this case under the controlling statute, regulations, and contracts. However, we affirm the dismissal of Plaintiff's claims against the Dona Ana County Housing Authority and the Board of County Commissioners because of her failure to give these defendants timely notification of her claim.
I. Factual and Procedural Background
{2} The Plaintiff Susana Cobos and her family were participants in a federally-subsidized low-income housing program administered by the Doña Ana County Housing Authority. Their home was privately owned and rented to them through the Authority's Section 8 Existing Housing Program. That program allows local governmental agencies to utilize private dwellings to meet a local need to shelter families of little means. Under the program the Authority contracted with the owners of Plaintiff's home to pay rent on her behalf in return for a certain amount of control to assure that the home fulfilled the purposes of the state and federal public housing schemes in providing "decent, safe, and sanitary" housing to the area's poor. See 42 U.S.C. § 1437 (1988).
{3} An early-morning fire killed Plaintiff's daughter Socorro Morales and Morales' two young children on November 11, 1990, while they were sleeping in Plaintiff's home. The fire apparently was caused over time by a defect in the fireplace flue, and started slowly in the roof beams adjacent to the room in which the victims were sleeping. The home was not equipped with a smoke detector.
{4} Plaintiff brought a wrongful death suit against Defendants claiming that they breached their duty to keep the home in "decent, safe and sanitary" condition, specifically alleging the Authority's employees negligently selected and inspected the building and failed to notice the absence of a smoke detector. The trial court dismissed these claims on the basis that the New Mexico Tort Claims Act immunized Defendants from suit. The Court of Appeals affirmed. See . The Court of Appeals reasoned that the Act's "building waiver," Section 41-4-6, did not cover the regulation of privately- owned property, and that the Authority did not have a sufficient legal interest in the building to create a duty to operate or maintain. Id. We reject the Court of Appeals' analysis.
{5} Our rejection of this reasoning, however, does not change the outcome of this case with respect to the governmental defendants. The trial court found that the Board and the Authority "did not receive actual notice of contemplation of litigation" under the Tort Claims Act. See NMSA 1978, § 41-4-16(C) (1997) (requiring that a plaintiff timely notify the public agency of her claims). The Court of Appeals reviewed this finding, held that it was supported by substantial evidence, and affirmed. See . We declined to grant certiorari on the question of notice, and issued an Order of Clarification stating our intent to limit our review only to the question of whether S
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